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ARBITRATION AWARD

UNITED STATES POSTAL SERVICE

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AMERICAN POSTAL WORKERS UNION

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April 11, 1986

Case Nos .H4C-NA-C-19H4N-NA-C-21 (1st issue)

NATIONAL ASSOCIATION OF LETTER CARRIERS

Subject : Overtime Assignments - Right of Full-Time RegularsOn Overtime Desired List to Refuse Certain Over-time

Statement of the Issues : Whether full-time regularson the overtime desired list have the option of ac-cepting or refusing work over eight hours on a non-scheduled day, work over six days in a service week,and overtime on more than four of five scheduleddays in a service week? Or whether these employeesmay be required to perform such work, even againsttheir wishes? Whether full-time regulars not onthe overtime desired list may be required to workovertime where those on the list have not exhaustedtheir overtime obligation of twelve hours a day orsixty hours a week?

Contract Provsisions Involved : Article 8, Sections 4 and5 an the Article 8 Memorandum of the July 21, 1984National Agreement .

Appearances : For the Postal Service,J. K. Hellquist , General Manager , Labor RelationsDivision, Central Region ; for APWU , Darryl J .Anderson , Attorney ( O'Donnell Schwartz & Anderson) ;for NALC, Keith E . Secular ( Cohen Weiss & Simon) .

Statement of the Award : The grievances are re-solved in accordance with the foregoing discussion .

BACKGROUND

This case involves the interpretation and application ofnew overtime language in the 1984 National Agreement , speci-fically, Article 8, Section 5F and G . The parties have cer-tain basic differences as to the rights of full-time regularson the overtime desired list (ODL) . The APWU contends thattHese employees have the option _~~~_~~ of accepting or refusing workover eight hours on a non--scheduled day, work over six daysin a service week, and overtime on more than four of fivescheduled days in a service week . The Postal Service andNALC disagree . They maintain that full- time regulars on theODL have no such option and that they must accept assignedovertime subject only to the twelve-hour day and sixty-hourweek restrictions .

This dispute is significant not just for those who haveplaced their names on the ODL . It also has a derivative im-pact on full -time regulars not on the ODL . For they can berequired to work overtime oT it all available and qualifiedemployees on the ODL have reached the twelve -hour day andsixty-hour week limits . The APWU view of ODL employees'rights would make non-ODL employees more susceptible to anovertime draft while the Postal Service-NALC view would makenon-ODL employees less susceptible to an overtime draft .

Some history of the overtime clauses, Article 8, Sec-tions 4 and 5, is necessary to a full understanding of theproblem . Prior to the 1984 National Agreement , overtime wasdistributed in the following manner . ODLs were established"by craft, section, or tour . . .", whichever criterion wasadopted by the local parties ( Section 5B ) . Employees werefree to sign ( or not sign ) the ODL. Thereafter , when over-time arose for the APWU unit, those on the ODL with the "neces-sary skills" were "selected in order of their seniority on arotating basis " ( Section 5Cla ) . When overtime arose for theNALC unit, those on the ODL list with the "necessary skills"were "selected" with Management being required to make "everyeffort . . .to distribute [such overtime} equitably among thoseon the list" (Section 5C2a and b) . There was just one over-time pay rate, namely, one and one-half times the straight

However, recourse to the ODL was not necessary "in thecase of a letter carrier working on the employee's own routeon one of the employee's regularly scheduled days" (Section5C2d) .

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time rate (Section 4A) . Such overtime pay was due for anywork over "eight (8) hours . . .in any one service day" or over"forty (40) hours in any one service week" (Section 4B) .

There were other important contract provisions as well .If the ODL did not produce sufficient qualified people, thenemployees "not on the list may be required to work overtimeon a rotating basis with the first opportunity assigned tothe junior employee" (Section 5D) . Limits were placed onthe amount of overtime a full-time regular could be requiredto work, regardless of whether or not he was on the ODL .Specifically, "no full-time regular . . . [was] required to workovertime on more than five (5) consecutive days in a week . . .[or] over ten (10) hours in a day or six (6) days in a week"(Section 5F) . These restrictions, however, did not apply inthe month of "December" or in "emergency situations" (Section5F) .

There was one national level arbitration with respect tothe meaning of 5F . The grievant, an APWU clerk, was a full-time regular on the ODL . He reported two hours early on ascheduled day and completed ten hours' work by the end of hisshift . Additional overtime was then necessary . The grievant-asked to work such overtime but was refused . Management in-stead gave the overtime to employees who were not on the ODLbut who had only worked eight hours that day . The Postal Ser-vice argued that the ten-hour limitation in 5F was both "a pro-tection [for the grievant] against a mandatory assignment anda bar to any further overtime that day ." The APWU concededthat Management could not require him to work beyond ten hours .But it urged that he was free to volunteer for the additionalovertime and that, having done so, he had a superior rightto the overtime because he was on the ODL .

Arbitrator Bloch upheld tl}e APWU's position in a May 1983award, Case No . H1C-4B-C-2129 . His ruling was that ODL em-ployees could not be forced to work beyond the 5F limitationsbut could volunteer to do so . He reasoned that once thegrievant volunteered, he had to be chosen for the overtime inpreference to non-ODL people even though this overtime wouldhave entailed his working more than ten hours . The arbitratordid not consider the reference to a ten-hour day in 5F as anabsolute ceiling on ODL employees' daily hours .

2 It should be note that NALC did not intervene in this caseand that Arbitrator Bloch was not a member of the national ar-bitration panel which had jurisdiction over disputes betweenNALC and the Postal Service .

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Thereafter , I presume , APWU employees on the ODL had theoption of accepting or refusing overtime beyond the 5F limi-tations . That seems to be borne out by a Step 4 pre-arbitrationsettlement in April 1984 . There , the Postal Service andAPWU agreed that a full-time regular on the ODL "shall not berequired to involuntarily work over 10 hours in a day, morethan 6 days in a week , or work overtime on more than 5 con-secutive days in a week ." They agreed further that anyoneselected for overtime pursuant to the overtime distributionrules "may volunteer to work . . ." beyond these restrictionsand that Managemnt would not violate Article 8 by granting thevolunteer ' s request .

At about this same time , April 1984 , the parties begannegotiations for a new National Agreement . The Unions soughtto create new restrictions on overtime including a requirementfor advance notice and an increase in the overtime premium .Their objective, as in the past, was to limit overtime andto protect those who did not wish to work overtime . No realprogress appears to have been made until November . The par-ties then reached agreement on penalty pay, two times thestraight time rate , for overtime work beyond certain restric-tions . They had trouble defining those restrictions , that is,describing the point at which penalty pay would begin. Thisdifficulty was resolved on November 21 after a series of meet-ings . It was agreed that penalty pay would be applied to workover ten hours on a scheduled day, over eight hours on a non-scheduled day, over six days in a service week, and overtimeon more than four of five scheduled days in a service week .

Notwithstanding this agreement , discussion of overtimeissues continued . Postmaster General Bolger and APWU Presi-dent Biller met on November 26 to deal with some disagree-ment which had recently surfaced . . Bolger gave Biller a PostalService proposal as to the wording of Article 8 and sent acopy to NALC President Sombrotto . That proposal includedthe following clause, Section 4G :

"Nothing in this Article shall require theassignment of overtime to an employee, if suchassignment shall result in the payment of penaltyovertime pay, when there is another employee avail-able for such overtime assignment who is not eli-gible for penalty overtime pay ."

This language would have permitted Management to assign over-time to someone not on the ODL in order to avoid penalty payto people on the ODL who were available for such overtime .Both the APWU and NALC found this arrangement unacceptable .

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Discussions continued , Bolger and Biller meeting againon November 27 . Biller suggested a clause which would haveeliminated Section 4G above and would have added the follow-ing sentence to what had already been tentatively agreed upon :

'' . . .Excluding December , employees volunteeringfor overtime shall be limited to no more thantwelve ( 12) hours of work in a day and no morethan sixty ( 60) hours of work in a service week . . ."

This was the first reference in the negotiations to thesetwelve-hour and sixty -hour ceilings . And, at least accord-ing to NALC, it was the first reference in the negotiationsto employees "volunteering" for overtime as contrasted to em-ployees signing the ODL . Earlier Postal Service suggestionsas to "mandatory " overtime had been vigorously opposed by theAPWU .

Another meeting , attended by Bolger , Biller and Sombrotto,took place on December 3 . Bolger proposed a draft of how thePostal Service thought Article 8 should read . His proposaldeleted the Section 4G language he had submitted on November 26and added to Section 5F the sentence ("Employees volunteeringfor overtime . . .") Biller had submitted on November 27 .Sombrotto objected to the latter sentence and urged it be re-placed by a .reference to persons on the ODL . His positionwas that those on the ODL be required to work overtime beforeanyone else was asked . After much discussion, it was apparentlyagreed that use of the ODL would be substituted for thelanguage with respect to "employees volunteering . . ." The par-ties then instructed their attorneys to prepare contractlanguage based on the understandings reached at this meeting .

The attorneys sought to comply with their instructions .They prepared a draft of Article 8, Section SG, perhaps 5Fas well . Both the Postal Service and NALC were satisfiedthat this draft accurately reflected the parties' agreementat the December 3 meeting . The APWU, however, disagreed andfound the draft unacceptable . It went back to the Postal Ser-vice and sought further language changes . The Postal Servicestood by the draft and refused to alter what it believed hadalready been agreed upon . This impasse between the PostalService and APWU continued until sometime after the interestarbitration hearings had begun in December . Their differenceswere resolved through a series of meetings between December 10and 17 which culminated in the execution of an Article 8Memorandum . That Memorandum attempted to explain the "under-lying principles" behind Article 8 but did not change any

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Article 8 language . NALC did not participate in any of thesenegotiations and did not sign the Memorandum . Nevertheless,the Article 8 Memorandum was made part of the 1984 NationalAgreement .

The relevant terms of Article 8 and the Memorandum pre-sently read :

Section 4 . Overtime Work

"C. Penalty overtime pay is to be paid at therate of two ( 2) times the base hourly straight timerate . Penalty overtime pay will not be paid forany hours worked in the month of December .

"D . Effective January 19, 1985, penalty over-time pay will be paid to full-time regular em-ployees for any overtime work in contravention ofthe restrictions in Section 5 .F ."3

Section 5 . Overtime Assignments

"F . Effective January 19, 1985, excludingDecember , no full-time regular employee will berequired to work overtime on more than four (4) ofthe employee ' s five ( 5) scheduled days in a ser-vice week or work over ten ( 10) hours on a regu-larly scheduled day, over eight ( 8) hours on anon-scheduled day, or over six (6) days in a ser-vice week .

"G . Effective January 19, 1985, full-time em-ployees not on the 'Overtime Desired' list [ODLImay be required to work overtime only if all avail-able employees on the 'Overtime Desired' list haveworked up to twelve (12) hours in a day or sixty(60) hours in a service week . Employees on the'Overtime Desired' list :

1 . may be required to work up to twelve (12)hours in a day and sixty (60) hours in aservice week (subject to payment of pen-alty overtime pay set forth in Section 4 .Dfor contravention of Section 5 .F) ; and

The provisions o- Section 4A, B, and F remained the sameas they had been in the 1981 National Agreement .

2 . excluding December , shall be limited tono more than twelve ( 12) hours of work ina day and no more than sixty ( 60) hoursof work in a service week .

However, the Employer is not required to utilizeemployees on the 'Overtime Desired' list at thepenalty overtime rate if qualified employees onthe 'Overtime Desired ' list who are not yet en-titled to penalty overtime are available for theovertime assignment ."4

Article 8 Memorandum

"Recognizing that excessive use of overtime isinconsistent with the best interests of postal em-ployees and the Postal Service, it is the intentof the parties in adopting changes to Article 8to limit overtime, to avoid excessive mandatoryovertime , and to protect the interests of employeeswho do not wish to work overtime , while recognizingthat bona fide operational requirements do existthat necessitate the use of overtime from timeto time . The parties have agreed to certain addi-tional restrictions on overtime work, while agree-ing to continue the use of overtime desired liststo protect the interests of those employees whodo not want to work overtime, and the interestsof those who seek to work limited overtime . Theparties agree this memorandum does not give riseto any contractual commitment beyond the provi-sions of Article 8 , but is intended to set forththe underlying principles which brought the par-ties to agreement .

"The new provisions of Article 8 contain dif-ferent restrictions than the old language . How-ever, the new language is not intended to changeexisting practices relating to use of employeesnot on the overtime desired list when there areinsufficient employees on the list available tomeet the overtime needs . For example, if thereare five available employees on the overtime de-sired list and five not on it, and if 10 workhoursare needed to get the mail out within the nexthour, all ten employees may be required to workovertime . But if there are 2 hours within whichto get the mail out, then only the five on theovertime desired list may be required to work .

The provisions o Section 5A, B, C, D and E remained thesame as they had been in the 1.981 National Agreement .

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"The parties agree that Article 8 , Section 5 .G .1 .,does not permit the employer to require employeeson the overtime desired list to work overtime onmore than 4 of the employee ' s 5 scheduled daysin a service week , over 8 hours on a nonscheduledday, or over 6 days in a service week .

"Normally , employees on the overtime desiredlist who don ' t want to work more than 10 hours aday or 56 hours a week shall not be required todo so as long as employees who do want to work morethan 10 hours a day or 56 hours a week are avail-able to do the needed work without exceeding the12-hour and 60-hour limitations .

"The penalty overtime provisions of Article 8 .4are not intended to encourage or result in the useof any overtime in excess of the restrictions con-tained in Article 8 .5 .F ."5

The parties discussed the meaning of these provisionsin early April 1985 . The Postal Service formally explainedits position to the Unions in an April 5 letter . NALC dis-agreed and filed a grievance ( H4N-NA-C-21, 1st issue) at thenational level on July 2 . APWU also disagreed and filed agrievance (H4C-NA-C-19) at the national level on July 3 .Then each Union intervened in the other ' s grievance .

Arbitration hearings in this case were held in Washington,D .C . on December 18 an 19, 1985 . Post-hearing briefs were sub-mitted by all parties on February 7, 1986 ; reply briefs weresubmitted by the Postal Service and APWU on February 28 .

DISCUSSION AND FINDINGS

One of the issues that prompted this arbitration appearsto have been resolved . The Postal Service initially took theposition that it could assign overtime to non-ODL employeesto avoid incurring penalty pay to ODL employees for overtimework beyond the 5F limitations . Both APWU and NALC pro-tested this view . And the Postal Service, by agreeing withNALC's construction of the contract language in question,has obviously changed its position on this matter . It is

This Memorandum was incorporated in the National Agreementthrough the December 24, 1985 Kerr interest arbitration award .

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clear from the statements at the arbitration hearing and inthe briefs that the Postal Service may not assign overtimeto non-ODL employees to avoid incurring penalty pay to ODLemployees .

The crucial issue here is whether ODL employees have theoption of accepting or refusing overtime work beyond the 5Flimitations . This problem is largely attributable to an ap-parent conflict between Section SF and 5G of Article 8 . Theformer provision concerns "full-time regular[s ] . . ." whichplainly encompasses ODL employees . It says such employees" will [ not] be required to work overtime . . ." in the follow-ing situations : more than ten hours on a scheduled day, morethan eight hours on a non-scheduled day, more than six daysin a service week, and more than four of five scheduled daysin a service week .6 The latter provision says ODL employees"may be required to work up to twelve . . .hours in a day andsixty. . . hoursurs in a service week . . ."

The APWU concedes that the ten-hour limitation in SF hasbeen superceded by the twelve-hour limitation in 5G . But itinsists that in all other respects the 5F limitations remainin effect, thus providing ODL employees with the option ofaccepting or refusing overtime beyond these limitations . Itbelieves the 5F "will [ not] be required . . ." language leavesroom for employees to volunteer to do what they cannot be re-quired to do . Its position is, accordingly , that ODL em-ployees can work more than eight hours on a non-scheduled day,more than six days in a service week, and overtime on morethan four of five scheduled days in a week only if they volun-teer for such work . Absent such consent, it says, Managementmust look elsewhere to find someone to handle the overtime .It considers 5G to be simply a ceiling on the number of over-time hours an employee may volunteer to work . It maintainsits view is supported by overtime administration under theprior National Agreement (particularly the Bloch award and theStep 4 settlement cited earlier ) and the language of Article 8and the Article 8 Memorandum .

The Postal Service and NALC contend that the prohibitionin 5F, at least with respect to ODL employees, has been can-celled by the permissive language in 5G . They argue thatODL employees can be required to work up to twelve hours ina day and sixty hours in a week without regard to the 5F limi-tations . They urge that these employees do not have the

This last situation refers to the employee who works over-time on four scheduled days and is then asked to work overtimeon his fifth scheduled day as well .

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option of accepting or refusing any overtime beyond the 5Flimitations . They claim their view is supported by theclear and unambiguous language of Article 8, by the historyof the 1984 negotiations , and by considerations of practi-cality .

A hypothetical example may be useful in bringing thesearguments into sharper focus . Assume "X", a full-time regular,is on the ODL and has worked the following hours on his regu-larly scheduled days in a given week :

S S M T W Th F12 10 10 10 8

Assume further that two hours of overtime are needed at theend of his eight-hour shift on Friday and that only "X" and" Y", a non-ODL employee , are available for such overtime .Neither the twelve-hour daily nor sixty-hour weekly restric-tions are relevant in this example .

The APWU emphasizes that these extra two hours on Fridayfor "X" would be "overtime on more than four . . . of [his] . . .five . . . scheduled days in a service week ." It asserts that5F says he "will [not] be required to work overtime . . ." insuch circumstances . It believes he therefore has the optionof accepting or refusing this overtime . It claims that ifhe volunteers he has a right to the extra two hours ahead of"Y" or anyone else not on the ODL but that if he declines hecannot be compelled to work the overtime . It notes that onlyafter he declines may Management assign "Y" to the overtime .

The Postal Service and NALC rely on the terms of 5G inalleging that "X" has no such option. They state that so longas "X" has not worked twelve hours on Friday or sixty hoursin the week , he can be required to work the additional over-time on Friday . Indeed, they urge that "X" must be requiredto work this overtime in order to protect "Y" from an over-time draft .

For the following reasons, the Postal Service-NALC inter-pretation of Article 8 is far more persuasive .

Compare, to begin with, the terms of 5F ("will [not] berequired . . .") and 5G ("may be required . . .") . The APWU saysthe former words mean that an ODL employee cannot be compelledto work beyond the 5F limitations . Assuming t a is so tthe latter words must necessarily mean that an ODL employee

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can be compelled to work up to twelve hours in a day . Theemployee's right to resist certain overtime is subordinatedto Management's broader 5G right to demand such overtime .

The point can be made more forcefully through a closeexamination of the language of 5G : " . . .Employees on the 'Over-time Desired' list . . . 1 . may be required to work u to twelve

.hours in a day and sixty . . .hours in a service EM R .. .

Section 5Gallows Management to insist upon a twelve-hour "day" for ODL people . It ignores the distinction madein 5F between "regularly scheduled day" and "non-scheduledday." The parties ' choice of the broadest possible word , "day",must have been intentional . They appear to have meant an y"day", whether scheduled or not . The APWU admits that e5F limitation of "ten . . . hours on a regularly scheduled day"has been overridden by the twelve -hour day in 5G1 .7 By thesame token , it seems to me, the SF limitation of "eight . . .hours on a non-scheduled day" or "overtime on more than four. . .of the . . . five . . . scheduled days in a service week " are alsooverridden by the twelve-hour day in 5G1 . And Managementbeing thus free to require twelve hours on a non-scheduledday, it would appear that the SF limitation of "six . . . . daysin a service week" is likewise overridden . In other words,5G1 is a far -reaching exception to all the limitations statedin 5F, not just to the ten -hour rule .

Equally important is the recognition in 5G1 that Manage-ment, in requiring ODL employees to work up to twelve hoursa day or sixty hours a week, is "subject to payment of penaltyovertime pay set forth in Section D of contraventionofecti. on . ." The underscored words reveal the parties

anticipate that Management may find it necessary to "contra-ven[e] " the 5F limitations , that ODL employees "may be re-quired to work . . ." overtime beyond those limitations . Nothingin this language suggests that the parties ' concern was "con-travention" of only one such limitation , the ten-hour rule .Their concern was much larger . They were dealing with any"contravention " of the 5F limitations . That is obvious sofrom the terms of 4D which call for "penalty overtime pay"for "any overtime work in contravention of the restrictionsin Section S .F ." The reference is to an~y and a iII- mill tationsfound in 5F . The quoted language in 5 aG~h the same broadreach . That being so, it would appear that the twelve-hour

This admission undermines the APWU contention that 5G islittle more than a statement of overtime ceilings (twelveand sixty) beyond which ODL employees cannot be required towork .

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and sixty-hour language in 5G1 were meant to pertain to aand all limitations found in 5F .

Moreover, the Postal Service-NALC interpretation re-alistically integrates the overtime duty of ODL employeeswith the overtime draft of non-ODL employees . Section 5G1says ODL people "may be required to work up to twelve . . .hoursin a day nd sixty . . . hours in a service wee ; the f irst sen-tence o says non-ODL people may be required to work over-time only if all available . . .[ ODL employees ] have worked upto twelve . . . hours in a day or sixty . . .hours in a serviceweek . In short, non- employees can be rafted for over-time at precisely the point at which ODL employees have ex-hausted their overtime obligation . Such symmetry assures theavailability of someone to work the needed overtime . Toqualify the ODL employees' obligation by allowing them theoption to accept or refuse overtime beyond the 5F limitationswould mean they could refuse overtime before they reached thetwelve-hour and sixty-hour ceilings . That would mean in turnthat non-ODL employees could refuse overtime because the ODLpeople had not reached these ceilings . The result in manysituations would inevitably be that no one could be ordered toperform the necessary overtime and postal operations wouldsuffer . That could hardly have been what the parties in-tended .

Consider , in this connection , the impact of the APWU in-terpretation in the hypothetical example mentioned earlier .The APWU would permit "X" to decline the additional twohours of Friday overtime . That would be his option becausethe work in question went beyond the 5F limitations . Because"X" had not yet reached the twelve -hour ceiling on Friday orthe sixty -hour ceiling for the week , a non-ODL employee suchas "Y" could also decline the overtime pursuant to SG .8 Ifboth "X" and "Y" refused, the extra two hours of overtimewould not be performed at all . It is difficult to believethe parties meant 5F and 5G to be read in such a way as toproduce such a patently unreasonable result .9

8 To the extent to whit the APWU believes the overtimewould have had to be worked by "Y" in the hypothetical ex-ample, its position would conflict with the plain meaning ofthe first sentence in 5G .

9 Note that the very first sentence in Section 5 provides :"When needed, overtime work for regular full-time employeesshall be scheduled among qualified employees . . ." The APWUposition would, in certain situations, deny Management thisright to "schedule . . . needed . . . overtime . . ."

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The Postal Service-NALC interpretation is further sup-ported by the final sentence in SG :

"However , the Employer is not required to uti-lize employees on the ' Overtime Desired' list atthe penalty overtime rate if qualified employeeson the ' Overtime Desired' list who are not yet en-titled to penalty overtime are available for theovertime assignment ."

This sentence says in effect that Management may pick andchoose among ODL employees to avoid penalty overtime pay, toavoid working some of these employees beyond the 5F limita-tions . But the clear implication of these words is that Man-agement " is . . . required" to use ODL employees for the over-time when all ODL employees have reached the point at whichtheir next overtime assignment will bring penalty pay . Giventhis requirement , the ODL employees can hardly be said to havethe option of accepting or refusing the overtime .10

Furthermore , the APWU argument contemplates ODL em-ployees being given an opportunity to volunteer for overtimebeyond the 5F limitations . This would entail ascertainingthe wishes of ODL employees on a day-to-day basis dependingon the need for overtime and each employee ' s accumulatedovertime hours in a given day or week . Article 8 says abso-lutely nothing about any such procedures . President Billerhimself acknowledged in his testimony that the Article 8language drafted by the parties ' attorneys on December 3,1984 , did not permit ODL employees "the option to volunteer . . ."for work beyond the 5F limitations . Yet that draft languageis exactly what now appears in SF and 5G of the present Na-tional Agreement .

The APWU returned to the bargaining table with the PostalService after December 3 because it believed the SF and SGlanguage drafted by the attorneys did not really embrace theAPWU view of ODL employees' rights . The result of these talkswas the Article 8 Memorandum . The APWU asserts that the termsof the Memorandum, primarily the third paragraph, support itsposition in this case :

10 The further implication is that Management "is . . .required"to use ODL employees in preference to non-ODL employees eventhough the latter, if assigned to the overtime, would not re-ceive penalty pay .

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"The parties agree that Article 8, SectionS .G .1, does not permit the employer to requireemployees on the . . . [ ODLI to work overtime onmore than 4 of the employee ' s 5 scheduled daysin a service week , over 8 hours on a non-scheduled day, or over 6 days in a service week ."

These words seem to be directed at the matter in dis-pute, the interrelationship between 5F and 5G1 . They statethat SG1 does not permit Management to require ODL employeesto work overtime beyond the 5F limitations, except of coursefor the ten-hour limit on a regularly scheduled day . Thisis the very principle upon which the APWU rests its case .The difficulty with this claim, however, is that the partiesagreed that the Memorandum "does not give rise to any con-tractual commitment beyond the provisions of Article 8 . . ."I have already held that there is no " contractual commitment"in Article 8 to allow ODL employees the option of acceptingor refusing overtime beyond the 5F limitations . It followsthat nothing in the Memorandum can create such a "contractualcommitment ", such an ODL employee right . To rule otherwisewould be to permit the Memorandum alone to establish contractrights not otherwise provided for in Article 8 . Such a re-sult is expressly forbidden by the Memorandum .

Nevertheless , to the extent to which there is ambiguityin Article 8, the APWU argues that it may use the Memorandumas an interpretive aid to clarify what the parties intendedin 5F and 5G . For the purpose of the Memorandum was, by itsown terms , to "set forth the underlying principles which'brought the parties to agreement . . ." 11 This argument is notwithout appeal . But the fact is that when the overtime is-sues were settled at the December 3, 1984 negotiating session,there was no agreement that ODL employees could be requiredto work overtime beyond the 5F limitations only if they volun-teered to do so. Nor did the SF and 5G language drafted bythe parties' attorneys provide for such volunteering, for anoption to accept or refuse this kind of overtime . It was thiscontractual silence, the absence of any language embracingthe volunteer or option concept, which prompted the APWU dis-satisfaction with the attorneys' draft . The APWU insisted

11 I believe the words rought the parties to agreement" re-fer to the agreement on Article 8, not the agreement on theMemorandum .

then on further negotiation with the Postal Service on thisArticle 8 question . Its action recognized in effect that 5Fand 5G did not support the position it now takes . It couldnot secure a change in the Article 8 language and settledinstead for the Memorandum . To allow the Memorandum to add to5F and 5G what the parties clearly did not intend when theyreached agreement on December 3 would , I believe , add a new"commitment " to Article 8 . Once again, that is exactly whatthe Memorandum is not supposed to do .

As for the Bloch award and the Step 4 grievance settle-ment , both of these events occurred under a prior NationalAgreement . The new language added to the 1984 National Agree-ment , particularly 4D and 5G, make these precedents of littlevalue in this case .

My conclusion is that ODL employees do not have theoption to accept or refuse overtime beyond the 5F limitations . 12They can be required to perform such overtime ." The non-ODLemployees may not be required to work overtime until the ODLemployees have exhausted their overtime obligation under 5G .

AWARD

The grievances are resolved in accordance with the fore-going discussion .

Ric hard Mittenthal_A_rFitrator

The evidence 12 an arguments before me plainly show that thisis, contrary to the APWU claim, a principal issue in the presentcase .

13 There is no need to determine the precise circumstancesunder which Management may require ODL employees to work over-time beyond the 5F limitations . That subject is covered inpart by paragraphs 2, 4 and 6 of the Memorandum . Accordingto paragraph 4, ODL employees who do not wish to work morethan ten hours "normally . . . shall not be required to do so" pro-vided other ODL employees are willing to work beyond ten hours .According to paragraph 6, those who place their names on the ODLare given the opportunity at such time to indicate their avail-ability to work beyond ten hours in a day .

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